Patent-related activity in the Netherlands is disproportionately high given the size of the country. BASF alone has 1864 patents in the Netherlands and other companies, such as Samsung (1142), Sony (906) and LG (759), have similarly large numbers of Dutch patents. The Dutch Patent Court deals with more international patent cases than, for example, the United Kingdom. And major companies such as Samsung, Apple, Rhodia-Solvay and LG all chose the Netherlands as one of their battlegrounds in recent worldwide patent disputes.
So why do all these multinationals apply for patent protection in such a small country with only 17 million inhabitants? And why choose the Netherlands to initiate proceedings? Please find below the top 10 reasons to file for patents in the Netherlands.
- There's much to win: gateway to Europe
- Little to lose
- Fast preliminary injunctions, ex-parte and (pan-European) cross-border measures
- Accelerated Regime in Patent Cases
- Low legal expenses and full compensation for costs
- Specialised court
- Flexible language regime
- Legal capital of the world
- No discovery
- Helpful customs authority: border detention
Reason 1: There's much to win: gateway to Europe
The Netherlands is the main logistics gateway to Europe. Through this gate, companies gain access to the world's largest internal market: the European Union (EU) with more than 500 million inhabitants. Rotterdam is by far the largest port in the EU and Schiphol Airport Amsterdam is Europe's preferred cargo hub. The Netherlands is the undisputed leader in the area of European distribution centres for Asian and US companies by hosting almost 60% of them. A successful patent enforcement action in the Netherlands could therefore very well paralyse the entire European distribution of a company, thus blocking the world's largest internal market.
Reason 2: Little to lose
The Netherlands has only 17 million inhabitants, accounting for not even 4% of the total European population. That's fewer inhabitants than Beijing or Shanghai. In the unfortunate event that a patent were invalidated during an enforcement action, the market loss would be very limited since invalidation always has to be ruled on by a national court and would therefore be limited to the Netherlands alone even in case the patentee is requesting a pan-European injunction.
Reason 3: Preliminary injunctions, ex-parte and pan-European cross-border measures
Need a quick fix with pan-European effect? Preliminary injunctions may be obtained in a matter of days or weeks. Even in large patent cases the Dutch Patent Court has a practice of granting cross-border injunctions which also have effect in other European countries. Apple for example invoked 3 (invention) patents, 6 Community design rights, copyrights of several products and slavish copying in one preliminary injunction proceeding and there were fewer than 60 days between the serving of the writ and the (cross-border) decision of the Court. The Court ordered Samsung to cease infringement of all national parts of one of Apple's European patents In certain urgent cases it is even possible to obtain an ex-parte injunction (an injunction without hearing the defendant) within just a few days. For example, LG made an ex parte seizure of almost 300,000 Sony PS3 consoles based on alleged patent infringement only days before the European launch of the product. As Sony used the Netherlands as its gateway to Europe, this threatened to block the European launch.
Reason 4: Accelerated Regime in Patent Cases
Because of the unique Accelerated Regime in Patent Cases (ARPC), a decision in proceedings on the merits can be obtained swiftly. A first instance decision, dealing with both infringement and validity, can be obtained in approximately 10 months.
Reason 5: Low legal expenses and full compensation for costs
Despite the large number of excellent and very well trained attorneys specialised in patent litigation, legal fees are in general very competitive. A big patent case including both infringement and validity will cost about EUR 200k, whereas a similar case in the UK would cost more than 7 times as much (approx. EUR 1,500k). And the Netherlands has a system in which the winning party can obtain compensation for up to 80% of its legal costs from the losing party.
Reason 6: Specialised court
The District Court of The Hague has exclusive jurisdiction over patent matters in the Netherlands and over the years has become one of the most specialised courts in the EU, dealing with more patent matters than all UK courts combined. The District Court of The Hague is widely renowned for its practical and pragmatic decisions and the quality of its decisions is respected EU-wide.
Reason 7: Flexible language regime
When applying for a European Patent in the English language, the applicant has to file only a Dutch translation of the claims (and pay the fee) in order to obtain a Dutch patent. When going to trial, exhibits may also be submitted in English, French or German, thus saving considerably on the generally high translation costs.
Reason 8: Legal capital of the world
Besides being the gateway to Europe in the literal sense, the Netherlands is also considered the legal gateway to Europe. Former Secretary-General of the UN Boutros Boutros Ghali called the Dutch city of The Hague 'the legal capital of the world.'
Reason 9: No discovery
Unlike the UK or US, there is no time- and cost-intensive discovery process in the Netherlands.
Reason 10: Helpful customs authority
Last, but certainly not least, the Dutch customs authority is very active in investigating potential (invention) patent infringement; they even have a mobile laboratory for testing chemical substances such as medicines and specialty chemicals. Upon request, the customs authority will specifically look out for certain (potential) infringing products and detain them.
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